TORT OF NEGLIGENCE AND REMEDIES THEREOF

Is failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from “intentional torts” (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey.

REMEDIES
In making a claim for damages based on an allegation of another’s negligence, the injured party (plaintiff) must prove:

  • that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public,
    that the defendant’s action (or failure to act) was negligent-not what a reasonably prudent person would have done, c) that the damages were caused (“proximately caused”) by the negligence.

An added factor in the formula for determining negligence is whether the damages were “reasonably foreseeable” at the time of the alleged carelessness. If the injury is caused by something owned or controlled by the supposedly negligent party, but how the accident actually occurred is not known (like a ton of bricks falls from a construction job), negligence can be found based on the doctrine of res ipsa loquitor (Latin for “the thing speaks for itself”). Negligence is one of the greatest sources of litigation (along with contract and business disputes) in the United States.

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